In QBE Ins. Corp. v. M & S Landis Corp, 2007 WL 60995 (Pa.Super., 2007), the administrator of a nightclub patron's estate brought a wrongful-death and survival action against the owner of the nightclub and eight bouncers. The administrator contended that the bouncers wrestled the patron down the stairs in a choke hold, and then threw him face down on the ground at the direction of the nightclub's management. They then laid on top of him, restricting his ability to breathe and causing his death.

 

The administrator alleged that the patron's death was the “direct and proximate result of the negligence and carelessness“ of the nightclub and its employees, and that the nightclub failed to properly train and supervise its employees, adequately staff the nightclub, recognize that the patron posed no risk, and render first aid.

 

The nightclub sought coverage from its insurer under a commercial general liability insurance policy. The insurer denied coverage, contending that the patron's death was intentional and therefore not an occurrence under the policy and that the bouncers' actions fell under a policy exclusion for assault and battery.

 

The insurer filed suit in the county Court of Common Pleas , seeking a declaration that it owed that no duty to defend or indemnify the nightclub, its owners, or bouncers in a suit. The trial court agreed, and the nightclub and the bouncers named in the insurer's complaint appealed.

    

    The state Superior Court reversed, and ordered coverage for the nightclub and its bouncers. The court explained that although the bouncers' actions may have been intentional, the nightclub's negligence in training and supervising them was not. The court explained that even though forceful eviction clearly involved allegedly intentional conduct, specific factual allegations supported claims of negligence, including improper restraint, failure to properly train and supervise staff about evicting patrons, and failure to timely render first aid. Therefore, the alleged negligence of the nightclub bouncers and owners in causing the death of the patron was an accident and thus an occurrence within the meaning of its CGL insurance policy. In addition, the court held that the complaint's underlying claim was not assault and battery, but negligence, and so was not subject to the assault and battery exclusion.